Recent publications by Joanna Kalowski

Mediation in Australia

Through the cultural prism: mediation in Australia

Mediation in Australia is now a little over 20 years old.Its beginnings coincided with the publication of “Getting to Yes”, and most early trainings were based on the Harvard Negotiation model, a rational and pragmatic approach that seemed to match, even mimic, Australians’ views of themselves. How accurate this is bears closer scrutiny.

The average tourist could be forgiven for thinking Australia is just another English-speaking country, yet it is nothing of the kind, despite its beginnings as a British penal colony. Early Australia was divided between convicts, mostly Irish, and free settlers, mostly British, soldiers or gentlemen seeking adventure or fleeing disgrace. Of the original inhabitants little account was taken.The admixture of fear and ignorance which resulted from the inevitable misunderstandings that arose when the first European settlers encountered Aboriginal people gave rise to a climate of hostility which lingers to this day, and the clashes along the frontier, wherever it extended, went unrecorded until the 1970s, when historians began chronicling and memorialising the border warfare. The history of the “discovery” of the Great South Land, terra australis, is so hard to accept that many contemporary Australians refuse to believe it. Former Prime Minister, John Howard, dismissed it in 1999 as “the black armband view of history”, just as a former judge of the High Court of Australia, Sir Ronald Wilson, released a report entitled “Bringing them Home”.This is a first-person account of the lives and experiences of the so-called Stolen Generation, Aboriginal people removed from their families as children in an attempt to assimilate them under policies which came to an end as recently as the 1960s and 1970s.

Many factors contributed to the pitilessness with which early settlers – though by no means all of them – drove Aboriginal people from their tribal lands, but distance from the “long” arm of the law was undoubtedly one of them.With the British Parliament and the English courts a year away by sea, and the centres of authority established in the various settlements many days’ ride away, early settlers acted with a level of impunity hard to reconcile with the society from which they had come.British legal principles were regularly violated, none more so than a principle established in the hanging of a poacher for killing deer on the squire’s land.In his defence, it was proposed that the poacher had done no wrong, because the land in question “lay fallow”, and so did not in a legal sense “belong” to the squire, since he was not asserting his ownership by cultivating the land.In sentencing the poacher to death, the court ruled that “a man may own his land, though it lie fallow”.Yet the most frequently asserted proposition when dispossessing Aboriginal clans and tribes of their land was that it lay “fallow and uncultivated”, as if that fact legalised its expropriation.Ultimately, that legal fiction extended to the widespread use of the term “terra nullius”, the land that belonged (in a legal sense) to no one. The High Court of Australia, sitting in Mabo’s case in 1992, finally overturned “terra nullius” when it ruled that Native Title had always existed, and continued to exist, in a form which the raising of the British flag at Sydney cove in 1788 had not extinguished.

In the early colony, the free settlers called themselves Europeans and Aborigines were known as “Australians”.As they progressively acquired the lands of these Australians, those known to this day as squatters or members of the “squattocracy” - if the families became part of the social elite of the colony – soon awarded themselves the title of Australian along with title to the land, and the First Australians came to be called “ab origine”, or those who had been here from the beginning. Mediation conducted under the Native Title Act (1993) frequently has to deal with the legacy of land expropriations, forced removals and the denial of rights to Aboriginal people across Australia. Later in this article, Native Title mediation will be discussed, and the impact of this history on the process examined.

A second significant impact on the shaping of contemporary Australia is its status as a nation of immigrants, and one of the most multicultural nations on earth: only Israel has a more diverse population.After World War II, Australia set out to augment its population 1% annually by bringing in immigrants, and owes much of its post-war prosperity and growth to migration, and to the refugees it took in at the end of the war. An influx of “boat people”, Vietnamese fleeing the Communists after the fall of Saigon, arrived in the months and years after the end of the Vietnam war, in which Australian soldiers fought alongside Americans. Suddenly Australia was forced to reevaluate itself as part of Asia, and its geography began to rival its history as a source of self-perception.

The reality is that you can’t address a group, teach a class or go to a gathering without coming face to face with the cultural diversity of this land; nor can you expect to do many mediations in which cultural issues will not in some way be in play, whether acknowledged or not.

Australians of English-speaking background were, and remain, a strange amalgam of authoritarian and anti-authoritarian, but national heroes almost all embody anti-authoritarian traits.Ned Kelly*, an Irishman turned “bushranger”, or outlaw, is one such hero.He flouted the law, robbed the rich at gunpoint, promoted the idea of one law for all men, regardless of their status in society – and was eventually shot dead by police after years on the run in rugged bushland.

This brief sketch of the origins of contemporary Australia is relevant to any consideration of Australian attitudes to power and conflict, to the ways conflict is resolved, to deeply ingrained views of a person’s rights and entitlements, the rights and entitlements of others and the role played by third parties.

Australia has had a long, 105-year history of using conciliation and arbitration to settle disputes, and its industrial courts were frequently named conciliation and arbitration commissions.

Lawyers, businesspeople, employers and employees all had a working knowledge, or at least an idea, of what conciliation and arbitration involved, how they operated, who led the process, using what kinds of methodologies.The framework was legally sanctioned; it was the time-honoured way of settling disputes.In a country proud of its tradition of unionism, which in some industries in the past could have reached 80% of the workforce, the idea of operating collectively is deeply ingrained.Equally ingrained is the idea, derived from the employment arena, that if you are in dispute, you must notify those with whom you are in dispute via a third party, a union official, for instance, who will then set in motion the mechanisms for settlement.

With the decline in union membership that has taken place over the past two decades, and the introduction and enforcement of individual contracts of employment, there has been a greater degree of focus on individual grievances and remedies than previously, but the idea of collective bargaining for maximum effectiveness remains strong in the industrial arena.

The uptake of mediation in Australia has been nothing short of phenomenal.Australia is a nation of “early adopters”, readily embracing new technology and new ideas. Many Australian laws facilitate, even mandate mediation.Most courts encourage it, either as a case management tool to avoid delays or because its effectiveness is openly acknowledged, or both.Most universities offer courses in dispute or conflict resolution, and some provide actual mediation training as part of their offering, with a fine certificate upon “graduation” from courses ranging in length from 5 days to many weeks. Twenty years ago, a group of commercial lawyers formed a national organisation whose initial brief was to train lawyers as mediators.Their champion was a former Chief Justice of the state of New South Wales, Sir Laurence Street, himself an eminent mediator, whose patronage was invaluable in convincing many in the law that this was an idea whose time had come.

You could be forgiven for thinking that with all this early home-grown fervour, Australia would develop a peculiarly Australian model of mediation, adapted to its unique circumstances and place in the world.It may come as a surprise, then, that the vast majority of Australian mediators use variations of a model that would easily be recognised by American mediators.The model used in commercial mediation is fundamentally as follows:

1.Parties in dispute agree on a mediator, often following the exchange of a list of three names provided either by their legal representatives or a mediation provider organisation. As to who is on that list, more later…

2.The parties meet in preliminary conference OR exchange documents in preparation for the mediation, as well as settling the time, the place and the fees.(More often the latter; few preliminary conferences actually take place, even by phone.)

3.The parties, their lawyers and the mediator assemble on the day of the mediation, the mediator makes an opening statement, and the parties briefly exchange greetings and introductory remarks; OR the parties, assisted by the mediator, engage in an extended opening session at which they and their lawyers set out the issues in dispute and other matters, and the mediator identifies issues for discussion at the mediation. (Most often the former; opportunities for face-to-face communication are very limited, particularly in the commercial sphere.)

4.The mediator shows the parties and their teams to separate rooms, and holds private sessions with each party, ferrying offers and carrying snippets of information back and forth until the parties enter the zone of settlement.

5.The parties meet once again to discuss terms of settlement OR remain in their rooms until settlement is reached. (More often the latter.) In either case, lawyers meet and draw up the settlement documents.

Most commercial mediations of this kind are completed within one to three days.

Mediation theory asserts that in order to be a good mediator, you must excel in the process; whether you are a content expert or not matters little.In reality, in Australia, where lawyers have become the de facto gatekeepers of mediation, content expertise is highly regarded, and the “market” favours lawyer-mediators expert in the area of law of the dispute. The result is a rapidly growing trend towards evaluative mediation, and most often the process resembles conciliation** more than mediation. Mediators regularly report that they are asked to “give a view”, that is, provide a legal opinion on who is likely to win which points, or win the case as a whole, if the matter goes to court.

**Distinguished from mediation in that the conciliator is selected for content expertise and has input into discussion of settlement options.

Whether parties are satisfied with the outcomes achieved is not known, as few private mediators provide the parties with opportunities for written feedback, in the way provider organisations do. Few cases settled at mediation have found their way back into the courts, however, and those that have seek to set aside agreements reached at mediation, claiming duress or “misleading and deceptive conduct” as defined by the Trade Practices Act (1974).

Another development in Australia is the entry in growing numbers of former judges into the ranks of mediators.The “market” embraces them, and they are seen as a way of bringing reluctant parties to the table – and to agreement.A recent suggestion by the author to engage a well-known (facilitative) mediator was met with derision by a barrister, who said the matter needed someone to “bang heads together”, as he put forward the names of two former judges… Perhaps the enthusiasm for experts and ex-judge-mediators should be attributed to Australians’ authoritarianism – or at least to their belief that the other party needs an authoritarian style in order to “see reason”.

By the 1990s, mediation was well established and accepted by lawyers as a useful mechanism for settling cases.A respected former judge of the Supreme Court of New South Wales, Andrew Rogers, speaking at a conference, challenged an audience of lawyers about what he called their new-found enthusiasm for mediation.Is it because settlements can be reached behind closed doors, he asked? If the courts wind back confidentiality (and they have) such that mediators can no longer promise that “everything you say here is confidential”, would that enthusiasm ebb away, he asked.His question is as valid today as ever, and challenges mediators to give due weight to ethical and public policy considerations.What if Mabo’s case had been settled at mediation, mediators should ask themselves, and Eddie Koiki Mabo had received title to his own lands, but the matter had not reached the public domain? In the Australian context, these are important questions.

If, however, the measure of success of commercial mediation is the durability of outcomes, it is conducted very successfully here.But Australia faces complex questions which call for dramatically different approaches to mediation, capable of ensuring that the process by which outcomes are achieved and the opportunities parties have to develop or restore a relationship are as important as the outcome itself.

Claims by Aboriginal people under Native Title legislation are mediated by members of the National Native Title Tribunal, and the claim and mediation process can last months, even years.The Tribunal has set out its process in a document, and uses a circular model of mediation quite different from that used in more mundane matters, yet it would be recognisable to any practising mediator.

A Native Title Tribunal factsheet on mediation describes it this way:

The Tribunal member responsible for conducting mediation begins by describing the mediation process, and the claimants and other parties are given an opportunity to tell their side of the story. Each party, and each person representing a party, is required to act in good faith in relation to the mediation.

Mediation usually involves a series of meetings. Various factors influence the pace and content of native title mediations, and many parties may participate in the process. It may take years before agreement is reached on all the issues.

The mediator helps identify the issues, suggests a negotiation process, promotes communication, and helps the parties look at possible options for agreement. During the mediation, the mediator may meet with each party separately. These separate meetings provide an opportunity for parties to discuss with the mediator specific concerns or goals that they might not want to disclose to the other parties. Some mediation conferences involve parties who have similar interests (such as local governments, landholders, or miners) so that they can talk to the claimants about matters that concern them but not all the other parties.

The native title mediation process is not open-ended. Matters must progress at a reasonable pace toward some form of resolution. The Tribunal reports to the Federal Court on the progress of mediation and may make recommendations. The Federal Court may make orders consistent with those recommendations, or other orders, to assist in progressing the mediation. If there is no agreement between the parties, or if things have reached a deadlock and it appears that there will be no agreement, the Tribunal can report this to the court and the court may order Tribunal mediation to cease. The claimant application will then be dealt with by the court, and parties may be required to present their case.

The author was a member of the NNTT between 1996 and 1999, and learned a great deal by making fundamental mistakes, but also through the invaluable assistance of indigenous colleagues.

In a workshop on practical issues for mediators in indigenous settings, Professor Mick Dodson, Australian of the Year for 2009 and respected Aboriginal man, gave the following advice:

§Seating – it’s their decision.You can’t know who should sit where. Just think of the impact of avoidance relationships imperceptible to non-indigenous eyes.

§You need some knowledge of the groups involved, e.g. kin connections, other relationships.

§Co-Mediation – male-female is a really good way of making it easier for indigenous groups to talk to you.

§Goal orientation is inappropriate: relationships and process matter more than the outcome or the deal.

§Be prepared for “settling of old scores”, the ventilation of issues long in the past but never before able to be broached.

§Renewal of mandate will be necessary – create time for people to go away and do this.Mediation will not roll along without significant breaks in the process, and given the distances in Australia, sometimes weeks or months will be needed for this “business” to be done in the proper manner.

§Ensure people understand the nature and purpose of the mediation and their role in it.

§Ensure people get access to quality information.

§Assume there is no pre-existing decision-making process: people haven’t had to decide issues like these before, so they need time to develop decision-making mechanisms as part of the process.

§There may be little focus on outcome on the part of the indigenous parties, so the mediator must manage the frustration of the non-indigenous parties, typically more task-oriented.

§Do lots of groundwork: “pre-pre-pre-mediation”.

§Disputes will inevitably be complex and multi-layered.

§Pain and unresolved issues will intrude, and can’t be wished away.

§Some of these issues will be inter-generational pain concerning parents’ and grandparents’ experiences of being mistreated, removed, etc.

§Dysfunction is common, and will impact on relationships within the group.

§Read widely.

Conclusion:

Like many other young nations, Australia was born out of colonisation and conflict. It has been deeply marked by its historical conflicts and by the modes of resolution it adopted in the past to resolve them.It should also be judged by those it adopts now, publicly and privately, and how fair they were and how relevant they remain.

Looking back, it is apparent the “first wave” of mediations – called convergent problems by Peter Adler, President of the Keystone Centre, USA -was made up of largely routine, technical problems with a number of solutions, most of which were apparent, at least to the mediator, and gave rise to a great deal of technique-oriented training.

They were also the kinds of matters in which many mediators regarded themselves, quite properly, as experts.It is their very convergence that permits expertise to be claimed.The solutions to convergent problems are relatively obvious, measurable, and do not always require high levels of participation in order for an outcome to be reached.That is not to say that excluded parties do not resent their lack of involvement.What Adler suggests is that perfectly workable solutions can be achieved while working around certain parties.

Divergent problems are the other end of the spectrum.They are unbounded, and have no correct answers.The more they are studied, the more complex they appear, and the more the possible answers diverge.They reflect the value positions of diverse participants and as yet there are few good roadmaps for these divergent, values-led problems.

As the facilitation/mediation of such issues proceeds, what will work remains unclear.Early solutions often fall over and rarely guarantee results.Yet these problems are the problems of the future, and already include disputes over access to water, land, the question of carbon emissions and greenhouse gases.

Every society faces these disputes and they can only intensify with climate change and pressures on arable land in a society like Australia.If mediators attempt to address issues like these using the static models of deal-making, they are bound to fail.

The problem-solving model of Native Title, now used for only a fraction of disputes in Australia, has the capacity to encompass the cultural complexity of Australia, and the divergent nature of the problems that will have to be faced by the driest continent on earth.